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Same-sex marriage (SSM) in Oklahoma

Part 3: 2014 JAN: More reactions to court ruling.
Polling data on SSM. What is the core conflict?

2014-JAN-14: Reactions to the District Court's ruling (Cont'd):

Tony Perkins, president of the Family Research Council issued a statement saying:

"This activist judge is overrunning both the [state] constitution and the rule of law in a drive to fundamentally alter America's moral, political and cultural landscape. He is substituting his own ideology for the three quarters of Oklahomans who voted to preserve marriage in their constitution as it has always been defined.

"As the American people are given time to experience the actual consequences of redefining marriage, we are seeing the public debate and opposition to the redefinition of natural marriage intensify. In recent months, we have witnessed serious consequences of redefining marriage. For example, a Colorado baker is risking jail if he refuses to obey a court order to bake a cake for same-sex 'weddings' in contradiction to his Christian faith. We have also seen same-sex marriage cited in a decision striking down Utah's law against polygamy.

"These consequences continue to draw more Americans' attention to the serious threat to free speech and religious liberty posed by the redefinition of marriage. Rather than live-and-let-live, this court by redefining marriage will force people to violate the basic teachings of their faith, or lose their jobs." 1

"The ruling in this case ignores that time-tested and rational definition of marriage — affirmed by 76 percent of Oklahoma voters [a decade ago] — and replaces it with the recently conceived notion that marriage is little more than special government recognition for close relationships. A court should not impose this novel view of marriage on the people of Oklahoma. We will review the decision with our client, the Tulsa County clerk, and consider her next steps." 2

Bruce Hausknecht is a Judicial Analyst at Focus on the Family -- a fundamentalist Christian group that is opposed to marriage equality. He said:

"The more states that get on this 'judicial bandwagon' of having their marriage amendments declared unconstitutional, the more we’re going to have collisions between the free exercise of religion by business owners and the new normal, which is going to be same-sex marriage." 2

Carl Tobias is a constitutional law professor at the University of Richmond. He suspects that there is a trend forming in which federal district judges overturn state constitutional bans on SSM. He noted that it is ironically first appearing in conservative states like Utah and Oklahoma. He said: "It seems to be moving much more quickly than people thought." 3

Public opinion polling data during early 2014:

Although the voters did pass the amendment to the state Constitution in 2004 by an overwhelming 3 to 1 ratio, it is important to realize that public opinion on same-sex marriage -- both nationally and in individual states -- is in a continual state of flux. With few exceptions, support is increasing and opposition is decreasing. This is largely an inter-generational effect as:

Older teens and young adults with their more liberal beliefs concerning sexual orientation and marriage equality become voters, and

Elderly adults with their more conservative views die.

The Washington Post stated that a national Washington Post-ABC poll during 2014-FEB showed that:

"... a record-high 59 percent say they support same-sex marriage, while 34 percent are opposed, the widest margin tracked in Post-ABC polling." 5

Further, polls showed that in those 33 states that prohibited same-sex marriage during early 2014, an average of 53 percent of those polled support allowing it, while 40 percent oppose SSM. 5 If "Question 711" -- the plebiscite on recognizing same-sex relationships in Oklahoma -- were repeated in 2014, it might well fail.

5

We have seen many comments opposing same-sex marriage in Oklahoma by religious and social conservatives:

All have referred to the Question 711 vote in 2014 that overwhelmingly favored amending the Constitution.

None have referred to the dramatic increase in support for marriage equality, and the equally dramatic drop in opposition since 2004 both nationally and in Oklahoma.

This is still another indication that -- if a person wants to be well informed on a controversial topic -- they must read opinions from both or all sides of the question.

A poll on the "I Side With" web site was started on 2011-DEC-12 and was still collecting votes as of 2014-JUL. It concluded that 55% of participants favored same-sex marriage and 42% were opposed. 6 Unfortunately, this poll accepted opinions from people everywhere in the world, and was not restricted to adults in Oklahoma.

A poll on MSNBC concluded that 73% of Americans felt that Oklahoma is "ready to recognize same-sex marriage." However, this poll reflects the opinion of people from all over the world and was not restricted to the opinion of voters in Oklahoma. 7

The core conflict: a disagreement over the basic nature of the United State's political structure:

The basic disagreement doesn't have that much to do directly with marriage equality. It is over a disagreement about the basic nature of the United State's political structure and its federal and state constitutions. The same dynamics can be seen in many other states.

Many religious, social and political conservatives in Oklahoma were outraged over the ruling during 2014-JAN by District Court Judge Kern which legalized marriage by same-sex couples within the state. They demonstrated -- both in Oklahoma and in many other states in recent months --a major split between the beliefs of the pro-equality movement and those of political conservatives:

Belief 1: The United States is not a pure democracy; it is a constitutional democracy. That is, ultimate power in the country lies with the federal Constitution.

Supporters of marriage equality noted that Judge Kern's ruling -- and similar rulings by many other recent District Court and state judges on this topic -- is based on the equal protection and and due process clauses of the 14th amendment of the U.S. Constitution. These clauses require that federal and state governments treat all Americans equally, unless there is some overwhelming reason why this should not be so. Thus:

Since loving, committed opposite-sex couples are able to marry, the 14th Amendment to the federal Constitution requires that loving, committed same-sex couples must also be able to marry.

Any state statute or state constitutional amendment that prohibits same-sex marriage violates the U.S. Constitution. The state constitutional amendment passed in 2004 by Oklahoma voters bans same-sex marriage. It is unconstitutional because it violates the 14th Amendment of the U.S. Constitution. It is void and unenforceable.

Belief 2: The United States is not constitutional democracy; it is a pure democracy. That is, ultimate power in the country lies with the people.

In Oklahoma, those who oppose marriage equality frequently cite Article I Section 8 and the 10th Amendment of the U.S. Constitution. One of the matters that these clauses guarantee is that the individual states have the authority to define who is eligible to marry and who is not. The wishes of the people, as expressed in the 2004 amendment to the Oklahoma Constitution, thus overrule the federal Constitution's 14th Amendment.

Any court ruling in Oklahoma that allows same-sex marriage is thus void and unenforceable. The 2004 constitutional amendment bans same-sex marriage. It was, and remains, binding unless and until it is repealed by a vote of the people. Any federal judge's ruling to the contrary is void and unenforceable.

The solution to the conflict is obvious: a group of constitutional experts and scholars who promote both of the above belief systems could gather, engage in dialogue, and attempt to reach a consensus on whether the United States is a pure democracy or a constitutional democracy. This would not be an easy task, because when a person engages in a true dialogue, they have to suspend promotion of their current personal belief system. They have to listen to arguments from both sides, and actively seek the truth. Unfortunately, we are unaware of such a dialog even having being proposed. We do not expect one in the future.